Monday, April 29, 2013

&nbsp The live capture of the Boston Marathon bombing suspect Dzhokhar Tsarnaev occasioned celebration not only in the streets of Watertown that night [April 19] but all across the United States. Smart work and good cooperation by all the law enforcement agencies involved had kept the Boston area safe and put the homegrown citizen-terrorist on the path toward what seemed certain to be severe justice.
&nbsp Almost immediately, however, the celebration was marred by some tough-sounding Republican politicians and supposed national security experts. They called for giving Tsarnaev not grade-A U.S. justice but the degraded brand crafted by the Bush administration and left partly in place under President Obama.
&nbsp Sen. Lindsey Graham, the South Carolina Republican, led the calls for treating Tsarnaev not as a U.S. citizen but as an “enemy combatant” without the full complement of rights recognized in the criminal justice system. Graham, a former military lawyer, acknowledged that, as a citizen, Tsarnaev had to be tried in a civilian, not a military, court. But he argued that Tsarnaev should be held as an enemy combatant for perhaps 30 days in order to interrogate him in detail without the complications of Miranda and other constitutional rights.
&nbsp The White House promptly rejected the suggestion. “He will not be treated as an enemy combatant,” press secretary Jay Carney said at the April 22 press briefing. “We will prosecute this terrorist through our civilian system of justice.”
&nbsp Behind the scenes, however, the FBI had already pushed the envelope on Tsarnaev’s rights by questioning the wounded teenager for 16 hours in a hospital room without a lawyer and without any Miranda warnings. It took a federal magistrate judge to hold a presentment within 48 hours, as required by the Federal Rules of Criminal Procedure, and advise Tsarnaev of his rights.
&nbsp The FBI agents questioned Tsarnaev under an expansive interpretation of the so-called “public safety exception” to the Miranda rule created by the Supreme Court in 1984. The 5-4 decision in New York v. Quarles allowed law enforcement officers to dispense with Miranda under very limited circumstances and only for a brief time. In an unannounced policy shift in 2010, however, the Obama Justice Department reimagined the decision into authority for somewhat open-ended interrogation to gather “valuable and timely intelligence not related to any immediate threat.”
&nbsp The contrast between the facts in Quarles and those in Tsarnaev’s case show how far the Supreme Court’s ruling has been stretched. The case against Benjamin Quarles began when a woman told patrol officers she had been raped by a man with a gun. Officers stopped Quarles in a grocery store  he matched the woman’s description of her assailant  and asked him, without any Miranda warnings, where the gun was. Quarles pointed to a corner and said, “The gun is over there.” Officers retrieved the weapon; at trial, the prosecution sought to admit both Quarles’s statement and the weapon itself as evidence.
&nbsp Lower courts said the statement and the gun were both out, but the Supreme Court said both could be admitted. “We conclude,” then-Associate Justice William H. Rehnquist wrote for the majority, “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.” Rehnquist stressed, however, the specifics of the case: the officer asked Quarles only one question and advised him of his rights as soon as he had located the weapon, the “threat” to public safety that justified the exception.
&nbsp The Justice Department memo took that ball and ran with it. “The circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case,” the unsigned, four-paragraph statement reads. In “exceptional” cases, questioning could extend to “possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.”
&nbsp As Emily Bazelon noted in her critical commentary in Slate, the FBI had found no need to dispense with Miranda after Timothy McVeigh was apprehended for the Oklahoma City bombing nor after Eric Rudolph was arrested for the Atlanta Olympics bombing. In the post-9/11 world, however, the feds are giving much less deference to civil liberties.
&nbsp The 16-hour interrogation of a hospitalized and presumably sedated teenager stretches the exception up to the limit if not beyond. U.S. Magistrate Judge Marianne Bowler, on the bench since 1990, must have concluded the limit had been reached when she decided to schedule a bedside court appearance on April 22 to inform Tsarnaev of the charges against him and of his rights in the proceedings.
&nbsp Bowler and the FBI have both declined to comment, but House Intelligence Committee Chairman Mike Rogers, a Michigan Republican and former FBI agent, said investigators were “not happy” with the judge’s decision. Perhaps not, and perhaps the agents needed time to gather safety-protecting intelligence. But incommunicado, lawyerless interrogation of suspects is a practice that was once thought to have been put behind us. Time will tell whether Tsarnaev’s case proves to be an exceptional exception or a precedent for further expanding it.

Sunday, April 28, 2013

&nbsp Justice Stephen Breyer's bicycle accident [April 26] came 20 years after a more serious biking mishap that may have played a part in his failure to win an appointment to the Supreme Court when he was first considered for a vacancy in 1993. Here's my account from The Supreme Court Yearbook 1993-1994, the year that President Bill Clinton did choose him for the seat being vacated by Justice Harry A. Blackmun:
&nbsp Stephen Breyer had a bad year—at least a few bad days—in 1993. First came the bicycle accident. The longtime federal appellate judge, who regularly biked between his work at the U.S. courthouse in Boston and his home in adjacent Cambridge, was hit by a car as he was crossing Harvard Square. Breyer was hospitalized with a punctured lung and broken ribs.
&nbsp A week later, still in pain, Breyer left his hospital bed to go to Washington for a job interview—not just any job interview but a face-to-face meeting with the president of the United States about a vacancy on the Supreme Court. Breyer went into the session with President Bill Clinton on June 11 as the favored choice to succeed retiring justice Byron R. White. But somehow Breyer left Clinton cold. Aides later said the president found the former Harvard Law School professor detached and didactic.
&nbsp After the Friday afternoon meeting Breyer lay down on a couch in the White House counsel's office to rest. He was told to begin preparing an acceptance speech. But three days later, after a weekend of leaked stories that Breyer had failed to pay Social Security taxes on a household worker, Clinton settled on someone else for the Court: Ruth Bader Ginsburg, a judge on the federal appeals court in Washington, D.C.
&nbsp Ginsburg had won the president over with her life story of fighting and overcoming legal discrimination against women. Breyer's more conventional career paled by comparison. Passed over, Breyer returned to his judicial duties in Boston. In August he gamely came to Ginsburg's swearing-in ceremony.
&nbsp The episode was a rare setback for Breyer, and by all accounts he handled it well. When another Supreme Court seat opened up in April 1994, Breyer was naturally circumspect. When reporters asked him about his chances of succeeding the retiring justice Harry A. Blackmun, Breyer responded blandly. It was an honor to be considered, he said, and he had been considered before.
&nbsp Indeed, Breyer's chances started as slim. Clinton began with other candidates in mind: Senate Majority Leader George Mitchell, who had already announced his plans to leave the Senate at the end of the year; Interior Secretary Bruce Babbitt, who had been at the top of the short list a year earlier; and federal appeals court judge Richard Arnold, a respected jurist and a personal friend of Clinton's from his home state of Arkansas.
&nbsp One by one, however, the leading contenders fell by the wayside. Mitchell took himself out of consideration, saying he needed to devote full attention to his Senate duties, including shepherding the president's health care plan. Babbitt fell victim to sniping from some Republican senators— and to the likelihood of a more difficult confirmation battle over his successor at Interior. Arnold was crossed off the list because he suffered from lymphoma, a form of cancer, which Clinton feared might cut short his tenure on the Court.
&nbsp Finally, on May 13, after thirty-seven days of embarrassing public vacillation, Clinton turned to Breyer. “He was the one with the fewest problems,” White House counsel Lloyd Cutler told reporters in a background session afterward. Clinton announced his selection late Friday afternoon on the White House lawn to a press corps impatient after five days of rampant speculation. The announcement, just in time for the evening newscasts, averted another news cycle of criticism about the delay. Breyer was still in Boston. His formal presentation to the White House press corps had to wait until Monday.

Monday, April 22, 2013

&nbsp Fifty years ago, the U.S. Supreme Court was something of a backwater beat. The regular press corps was so small  half a dozen newspaper and wire service reporters  that they sat between counsel table and the bench, able to stare straight up at the nine justices. Protocol was so relaxed that reporters could use typewriters to take notes.
&nbsp Things are much different today. The regular press corps is larger: about 30 people have “permanent” press credentials. The press gallery has been moved off to the side of the court’s bench, with some seats inside the courtroom, others in cubicles just outside, and obstructed-view hallway seats for an overflow crowd that can number more than 100 for arguments in a major case.
&nbsp Protocol and security are also tighter. Reporters can bring pen and paper only. In an era of ubiquitous cell phones and BlackBerrys, reporters are admonished strictly to leave all electronic devices in the downstairs press room.
&nbsp Beyond the visible differences in the arrangements for news media, the coverage of the Supreme Court also has changed dramatically. There is more coverage by more news organizations on more platforms: newspapers and magazines, radio and television, and the web. And the coverage is both more detailed and more insightful, with careful attention to making stories legally precise as well as fully accessible to general audiences.
&nbsp No single individual deserves more credit for this transformation than Anthony Lewis, who died last month (March 25) two days shy of his 86th birthday after an award-winning journalistic career that spanned six decades. Lewis held the Supreme Court beat for The New York Times for less than a decade, 1955-1964, but he established a new standard for coverage by which Supreme Court reporters have been judged ever since.
&nbsp The Times’s obituary, written by Adam Liptak, Lewis’s successor four-times-removed, aptly conveys the debt that readers and viewers of Supreme Court coverage today owe to Lewis. Before Lewis, Supreme Court coverage was apt to consist of “pedestrian recitations” of decisions with little by way of context or legal reasoning. The “thorough knowledge” of the court that Lewis gained during a year of study at Harvard Law School as a Nieman fellow changed that. Lewis’s articles, Liptak writes, “were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.”
&nbsp Like countless others, this writer first read Lewis’s work  while a teenager  in Gideon’s Trumpet, Lewis’s masterful and celebratory account of the Supreme Court’s 1962 decision that required the government to provide lawyers to indigent defendants in criminal cases. By the time the book was published, in 1964, Lewis had already won his two Pulitzer prizes. The first, in 1955, was for stories helping to clear a Navy employee wrongly accused of disloyalty during the McCarthy era. The second, in 1963, was for his coverage of the Supreme Court, especially of its epochal decisions on reapportionment and redistricting.
&nbsp Lewis left the Supreme Court beat in 1964, but he did not leave behind his knowledge of law or his passion for justice. After a few years in the London bureau, Lewis started a 32-year career in 1969 as a Times columnist under the rotating titles “At Home Abroad” or “Abroad at Home.”
&nbsp Whether writing about events in the United States or in foreign countries, Lewis constantly returned to stories of people who had been wronged by misuse of law or cast aside by virtue of its neglect. In a tribute in The New York Review (May 9), Georgetown law professor and immigrant rights’ advocate David Cole recalled Lewis’s recurrent columns on the harsh strictures of immigration law and immigration court decisions.
&nbsp The tributes to Lewis that began with his death continued in Washington last week [April 18] as the Constitution Project bestowed on him and three others its constitutional champions award for their work on Gideon and its legacy. Accepting the award on his behalf, his widow, Margaret Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, recalled Lewis’s devotion to the U.S. Constitution.
&nbsp “Tony loved the Constitution of the United States,” Marshall said. “He lived the Constitution. He taught the Constitution. He believed in the Constitution. He wrote about the Constitution over and over and over and over.” In Lewis’s view, Marshall continued, the greatness of the United States  what conservatives might call “American exceptionalism”  “lies in our willingness to accept the Constitution, as interpreted by judges, as law.”
&nbsp Lewis retired the column on December 15, 2001. With the 9/11 attacks fresh in mind, Lewis reaffirmed his belief in the rule of law. “Without the foundation of law, this vast country could never have survived as one, could never have absorbed streams of immigrants from myriad cultures,” Lewis wrote. “With one terrible exception, the Civil War, law and the Constitution have kept America whole and free.”
&nbsp Lewis cautioned, however, that the rule of law is not self-executing. “Freedom under law is hard work,” he concluded. “If rulers cannot be trusted with arbitrary power, it is up to citizens to raise their voices at injustice.” Lewis raised his voice at injustice, eloquently and passionately, over more than half a century of turbulent times at home and abroad. His voice is now silenced, but his legacy lives on in the work of those  like myself  whom he educated and inspired.

Sunday, April 14, 2013

&nbsp Clarence Earl Gideon revolutionized the criminal justice system with a handwritten petition to the U.S. Supreme Court complaining about the state’s refusal to appoint a lawyer for him when he was tried and convicted in Florida in 1961 of breaking into a pool room. Gideon’s victory did not end, however, with the Supreme Court’s decision on March 18, 1963, requiring the government to provide public defenders for indigent defendants in felony cases. Gideon himself benefited from the decision in a retrial five months later when, represented this time by a lawyer, he was found not guilty.
&nbsp The 50th anniversary of the court’s unanimous decision in Gideon v. Wainwright is a fitting time both for celebration and for rededication to making the promise of Gideon reality. The Sixth Amendment right to counsel that Gideon and later cases safeguards exists in far too many cases only on paper, not in reality. Public defenders  overworked, underpaid, underresourced  give far too many defendants only the semblance of legal representation in a criminal justice system where the prosecution still has most of the cards.
&nbsp That is the central message of a 24-page report released last week [April 9] by the Brennan Center for Justice that describes the promise of Gideon as “unrealized.” Brennan Center attorneys Thomas Giovanni and Roopa Patel aptly depict Gideon as an “unfunded mandate”  a directive from the Supreme Court that state and local governments fail to adequately fund.
&nbsp The need for legal representation for the poor is if anything greater than it was in Gideon’s day. A half-century of tough-on-crime legislation has made the United States a global leader in incarceration. U.S. prisons held about 217,000 people in 1963; the prison population has increased since then more than tenfold to 2.3 million. “We live in an era of mass incarceration,” Giovanni and Patel write.
&nbsp The unwinnable war on drugs is one of the major reasons why U.S. prisons are filled to capacity and beyond. Almost half the people in federal prisons are there for drug offenses, but only a small fraction of those are serving time for serious drug trafficking. In state prisons, nearly half of the inmates are behind bars for nonviolent offenses, including a fair share of drug-related convictions.
&nbsp Tough sentencing laws give federal and state prosecutors more leverage in plea bargaining than they had a half century ago. Prosecutors who charge to the max hold draconian sentences over a defendant’s head in plea negotiations. Any number of defendants risk a decade or more in prison if they turn down a plea offer and insist on going to trial.
&nbsp Against the well-armed prosecutor, indigent defendants typically have a public defender with far too many cases to give any of them the attention they deserve. As Giovanni and Patel note, the American Bar Association recommends that public defenders carry a caseload of 150 felonies or 400 misdemeanors per year. The average public defender’s load is considerably higher. In New Orleans, for example, defenders handled on average 19,000 cases in 2009  seven minutes per case.
&nbsp For many indigent defendants, this is assembly-line injustice. In the mine-run of cases, public defenders have little to review the evidence or conduct an investigation  indeed, they have barely enough time to interview their clients.
&nbsp Federal public defenders are on average better qualified and better resourced than their state and local counterparts. But the current budget sequestration is having some impact. The federal defenders representing Suleiman Abu Ghaith, Osama bin Laden’s son-in-law and alleged al Qaida spokesman, in his conspiracy trial in federal court in New York City have asked that the case be delayed until January because of the five-week furlough imposed on the office to absorb the budget cut.
&nbsp The federal government does offer grants to supplement state and local spending on public defenders under the 20-year-old Justice Assistance Grant program. States have discretion on how to allocate the money: $287 million in 2012. Most of the money  60 percent in 2012  went to law enforcement. Combined, prosecutor and defenders offices got less than $16 million, and prosecutors got the lion’s share: $13.8 million versus only $1.9 million for defenders. Giovanni and Patel note that many defender offices are unaware they can apply for grants under the program.
&nbsp The Brennan Center report offers three “common sense reforms” to improve the country’s system of public defense. One step is to reduce the number of defendants put into the assembly line by reclassifying many petty offenses into non-jailable civil infractions or legalizing the conduct altogether.
&nbsp The two other steps focus directly on defender offices. The report naturally calls for more funding not only from the usual sources  state and local budgets and federal grants  but also from “unlikely sources,” such as the private bar. The report suggests that more law firms follow example of some in Atlanta and New York City of sending associates to externships in public service organizations, including defender offices. The report also specifically calls for more funding for training public defenders and for hiring social workers for defender offices.
&nbsp Political, fiscal, and financial realities militate against all these recommendations. Law-and-order sentiment remains strong; governments at all levels are financially strapped; and private law firms are themselves financially pinched. But the Supreme Court’s historic step in Gideon deserves better today than to be honored more in the breach than in the observance.

Monday, April 8, 2013

&nbsp Eleven years later and counting, the Guantanamo prison camp remains a festering sore for the United States, a failure in its own terms as counterterrorism policy and a stain on the United States’ human rights reputation abroad.
&nbsp Four years after President Obama’s bold promise to close the prison camp within a year, it still houses 166 detainees. Most of them  86 to be precise  have been cleared for release to their home or a third country. But they remain in limbo thanks to a policy of malign neglect that Congress has enacted and the Obama administration has failed to resist.
&nbsp Now, the prisoners themselves are demanding attention in the only means available to them: a hunger strike. Guantanamo officials say about 40 of the men are refusing food and 11 are being force-fed. David Remes, an attorney representing 15 detainees, says he has been told the number is much larger: most or virtually all of the 130 prisoners in Guantanamo’s Camp 6, the largest facility. The Center for Constitutional Rights (CCR), the New York-based public interest law firm that helps provide representation for the prisoners, says the protest amounts to “a grave crisis.”
&nbsp The immediate provocation for the hunger strike appears to have been the resumption in February of a policy of searching prisoners’ Qurans for possible contraband. Military spokesmen say the guards use protective gloves in the searches, but the Muslim prisoners consider them a desecration of their holy book.
&nbsp More to the point, the need for the searches is disputed. In a letter to CCR written last week [April 1], William Lietzau, deputy assistant secretary of defense for rule of law and detainee policy, claimed that “improvised weapons” and “unauthorized food and medicine” have been found hidden in prisoners’ Qurans. But Carol Rosenberg, the Miami Herald reporter who has been the most persistent journalist watchdog on Guantanamo, has been asking the Pentagon since mid-March for details, including photographs of any seized items, but no information has been provided.
&nbsp The military “has yet to substantiate” the claim, Rosenberg wrote in her April 5 story. Remes scoffs at the allegations, noting that observant Muslims would consider it a sacrilege to hide items inside a copy of the Koran. Nevertheless, Lietzau said in his letter that it is “imperative” that the policy continue.
&nbsp As serious as the Quran search issue may be, the hunger strike has now broadened into an anguished cry in protest of what is now more than a decade of legal limbo for the prisoners. The strike, Remes says, has become “a protest against the fact that they’re being held indefinitely, without charge, and with no end in sight.”
&nbsp Reports of the hunger strike prompted the United Nations’ chief human rights official to renew her call for closing the prison camp. The prolonged detention of the prisoners “raises serious concerns under international law,” Navi Pillay, the U.N.’s high commissioner for human rights wrote in a statement late last week. The failure to close the camp also “weakens [the United States’] position when addressing human rights violations elsewhere,” she added.
&nbsp The international criticism might be a sensible cost for a superpower to bear if the policy advanced U.S. purposes, but it does not, as well documented in a thoroughly reported critical examination of Guantanamo policies by Wall Street Journal reporter Jess Bravin. In his book The Terror Courts, Bravin recalls the fateful decisions by the Bush administration to stash supposed “enemy combatants” at Guantanamo, they thought beyond the reach of federal courts, and then create from scratch a brand-new system of military commissions to try the detainees. “The legal equivalent of a war of choice,” Bravin calls it.
&nbsp The decision to bypass either the established military court system or civilian courts did not solve, it caused, problems. In three successive decisions, the Supreme Court rebuffed the Bush administration’s attempt to shield the military commissions from judicial review. On top of those delays, the commissions themselves were forced, in effect, to re-invent the wheel  and the personnel selected for the jobs did not acquit themselves well.
&nbsp Bush and Congress responded to one of the Supreme Court’s decision, in 2006, with a law trying to fix some of the problems. When Obama took office, with a Democratic-controlled Congress, he tried to revamp the system further. But Obama bowed to restrictions voted by Congress that bar bringing Guantanamo prisoners to the mainland for trial and make transfers out exceedingly difficult.
&nbsp A decade out, the commissions have adjudicated only a few cases, with paltry penalties, while federal courts have tried and convicted dozens, often with long sentences. The current trial of the 9/11 conspiracy case at Guantanamo drags on, prolonged by antics from the defendants that a federal judge would have long since stopped. Despite reforms and reassurances from the newly appointed chief prosecutor, Bravin is unsatisfied. “The question remains,” he writes in conclusion, “whether [the commissions] can be done right at all.”
&nbsp The hunger-striking detainees ask the same question about the whole Guantanamo system. “The men are at their wit’s end,” Remes says. “They say to me and other defense counsel, ‘Look, we’re going to get out of here one way or the other. We’re either going to be released or we’re going to go out in a box.’ You have that level of desperation.”

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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